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The First Amendment demands that government tolerate all religions and promote none above the others. (It may promote all, for example, by allowing all church property to be tax-free.) In the Davey case, the state said to a student, “You can have $3,000 in taxpayer money to pay for any sort of study or training you like, and you may spend it at a religious school or a non-religious school, with one exception: you may not use it to train for the ministry.”

In his dissent, Antonin Scalia argues that the state is actively disfavoring religion here. He says, “The First Amendment, after all, guarantees free exercise of religion, and when the State exacts a financial penalty of almost $3,000 for religious exercise--whether by tax or by forfeiture of an otherwise available benefit--religious practice is anything but free.”

He adds: “This case is about discrimination against a religious minority…. One need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction. In an era when the Court is so quick to come to the aid of other disfavored groups, see, e.g., Romer v. Evans (1996), its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional.”

And finally: “What next? Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers' freedom of conscience forbids medicating the clergy at public expense? This may seem fanciful, but recall that France has proposed banning religious attire from schools, invoking interests in secularism no less benign than those the Court embraces today. When the public's freedom of conscience is invoked to justify denial of equal treatment, benevolent motives shade into indifference and ultimately into repression.”